SAVIETI v NEW ZEALAND POLICE [2019] NZHC 905

SAVIETI v NEW ZEALAND POLICE [2019] NZHC 905 [29 April 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-012[2019] NZHC 905BETWEEN DAVID SAVIETIAppellantAND NEW ZEALAND POLICERespondentHearing: 15 April 2019Appearances: M Pitch for AppellantD Dow for RespondentJudgment: 29 April 2019JUDGMENT OF LANG J[on appeal against conviction and sentence]This judgment was delivered by me on 29 April 2019 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Savieti faced a charge of careless driving causing injury.1 He defended thecharge but, in a reserved decision delivered on 13 September 2018, Judge Henwoodfound the charge proved beyond reasonable doubt.2[2] On 12 December 2018, the Judge sentenced Mr Savieti to 80 hours communitywork and ordered him to pay reparation to the victim of his offending in the sum of$665.50.3 The Judge also ordered Mr Savieti to make an emotional harm payment tothe victim in the sum of $500. Finally, she disqualified Mr Savieti from holding orobtaining a driver's licence for a period of six months.[3] Mr Savieti appeals against both conviction and sentence. He contends theJudge wrongly found that he had driven in circumstances that rendered his drivingcareless as required by the charge that he faced. On the issue of sentence, Mr Savieticontends the Judge erred in imposing a sentence of community work. He says theJudge should not have imposed such a sentence or, if it was warranted, the sentenceshould have been at the minimum level of 40 hours.A The appeal against convictionThe prosecution case[4] There was no dispute regarding much of the factual background to the allegedoffending. The prosecution case therefore consisted of formal admissions under s 9of the Evidence Act 2006 together with briefs of evidence tendered to the Court byconsent.[5] Mr Savieti is employed as a stores supervisor in the kitchens at AucklandHospital. The prosecution alleged that at some time after 4 pm on 15 November 2016Mr Savieti finished work and began driving his vehicle home. His route took himthrough Mount Roskill. At this point a motorist travelling behind Mr Savieti's vehiclein May Road said he saw Mr Savieti's vehicle drawing away slowly from his vehicle.1 Land Transport Act 1998, s 38(1).2 New Zealand Police v Savieti [2018] NZDC 18395.3 New Zealand Police v Savieti [2019] NZDC 27284.Mr Savieti's vehicle then crossed the centreline and collided with an oncomingvehicle. The collision injured the drivers of both vehicles.[6] The prosecution contended Mr Savieti had decided to drive in circumstanceswhere he was very tired after working later than he usually did. This resulted in himfalling asleep and losing control of his vehicle. The resulting collision left theoccupant of the other vehicle with significant injuries. The prosecution alleged thatMr Savieti's conduct in driving whilst tired meant that he failed to exercise the carethat would have been exercised by a reasonably skilful driver in the circumstances.4He was accordingly guilty of careless driving that caused injury to the driver of theother vehicle.The defence case[7] The defence case was based on matters that came to light after Mr Savieti wasadmitted to hospital following the collision. There he suffered a cardiac arrest afterbeing given drugs to combat the pain he was suffering as a result of his injuries. Thisled to an investigation that concluded Mr Savieti was suffering from severe obstructivesleep apnoea.[8] Mr Savieti gave evidence at trial and he also called evidence from Dr AndrewVeale, a registered medical practitioner who is a specialist respiratory and sleepphysician. Mr Savieti said that, in common with other members of his family, he hasalways snored when asleep. Until he was admitted to hospital following the collision,however, he was not aware that he suffered from obstructive sleep apnoea.[9] Mr Savieti said that on the day of the collision he had got up as usual at about4.30 or 5 am and began work at 6 am. He says his work in the kitchen area of thehospital follows a reasonably predictable routine. The first two to three hours involvethe lifting and storage of heavy containers of food products. He then spends thebalance of the day carrying out administrative tasks, including data entry into acomputer. He generally finishes work at around 2.30 pm but on the day of the collision4 New Zealand Police v Vialle [1989] 1 NZLR 521 (CA) at 523.he finished later at around 3.30 pm. He believes this may have been because staffshortages meant he was required to spend some time working in the kitchen.[10] Mr Savieti said that he is often physically tired when driving home but not"brain tired". He said he deals with the physical tiredness by turning up the volumeon his music and by opening the car window to refresh himself. Mr Savieti said hehad no memory of feeling sleepy on the journey home on the day of the collision. Hesaid he remembered turning into May Road in Mount Roskill. Thereafter he has nomemory of the next 20 seconds leading up to the collision. He remembered wakingup with his head rammed against the steering column. He was then freed from thevehicle and taken to hospital.[11] While Mr Savieti was in hospital his sleep patterns were measured overnight.This revealed that he suffered from either partial or complete respiratory obstructionon no fewer than 114 occasions each night. He was then given the use of an air flowgenerator known as a CPAP device. This requires Mr Savieti to wear a face maskwhilst asleep. The face mask creates a pressure seal that holds Mr Savieti's upperairway open, thereby preventing his airway from collapsing and obstructing his effortsto breathe.[12] Dr Veale said that obstructive sleep apnoea can manifest itself in a variety ofways on a day to day basis. Some persons have no symptoms at all whereas othersmay be severely affected. Some may be prone to marked daytime sleepiness at timesof low stimulation, and in extreme cases sufferers may fall asleep without warningwhilst driving a motor vehicle or in the midst of conversation.[13] Dr Veale said that persons who suffer from obstructive sleep apnoea may knowthey are tired, but in the absence of prior experience they may not know they are aboutto fall asleep. Furthermore, although the transition from wakefulness to feeling sleepywill generally be slow, the transition from feeling sleepy to falling asleep may beinstantaneous.[14] In cross-examination Dr Veale confirmed that sleepiness depends on twofactors. The first is sleep pressure, which is based on the quality and quantity ofpreceding sleep. The second is motivation, or state of arousal. Dr Veale said thatdriving a motor vehicle is a low stimulant activity. Dr Veale also said that Mr Savieti'slack of memory of the period immediately preceding the crash is not unusual insleepiness associated with sleep apnoea or any other form of sleepiness. In addition,he said the effects of tiredness from a long day at work and a poor night's sleep theprevious evening may be cumulative and render a person particularly vulnerable togoing to sleep. Finally, he said that most people would get some forewarning that theywere at risk of falling asleep but whether they understood that sleep was likely tofollow those signals depended on historical context. By this I take him to mean that aperson is more likely to recognise the risk if they have fallen asleep in a similarsituation on one or more previous occasions. Mr Savieti denies having fallen asleepwhilst driving in the past.[15] Based on Mr Savieti's self-described history, Dr Veale concluded this may havebeen "a very unfortunate first presentation of a recognisable symptom and sign of thisvery serious condition". The defence was therefore that Mr Savieti had fallen asleepthrough no fault of his own, and his conduct did not fall below that of a prudent andreasonable driver.The Judge's decision[16] After traversing the evidence, the Judge expressed her conclusion succinctlyin the following paragraphs of her decision:5[19] The key point is however, [Mr Savieti] did not have a nap at workbefore choosing to drive. He would have been having a nap between 3.00 and4.00 pm is what he reported to the doctor. He would have two to three hourssleep which would be quite significant. This is understandable of coursebecause of the long shifts he works, often waking probably before 5.00 am inorder to set off to work at 5.00 am.[20] So while sleep apnoea was undiagnosed and the Court accepts that hesuffers from sleep apnoea, the fact of having sleep apnoea was a cause of hisfalling to sleep or one of the causes. However, the defendant was clearly tiredhaving done a longer shift and been awake for nearly 11 hours and he madethe conscious decision to drive at a time knowing he had not had his usualdaily nap. Had he been acting prudently he would have had a sleep at workbefore heading off in his car to drive home. The Defendant is guilty of drivinghis vehicle when he was tired and knowing that he would be driving at a time5 New Zealand Police v Savieti, above n 2.when he would normally be sleeping. He lost control of his vehicle due tofatigue, inattention, of falling asleep at the wheel, driving over the centre lineand colliding with the complainant's vehicle. The standard of his driving fellbelow that of a prudent and careful driver. He did not take a nap at his workplace before commencing to drive thereby not being a reasonable and prudentdriver.Grounds of appeal[17] On Mr Savieti's behalf Ms Pitch contends that the Judge was wrong to find thecharge proved because the collision was effectively caused by events that were outsideMr Savieti's control. She says Mr Savieti's obstructive sleep apnoea caused him tofall asleep with no warning, and that he had no real opportunity to stop and take stockof the situation. Furthermore, Ms Pitch relies on the fact that Mr Savieti says he hasnever fallen asleep whilst driving in the past, and there was nothing to alert him to thefact that he was at risk of falling asleep on this particular day. Given that backgroundMs Pitch contends the Judge erred in finding that Mr Savieti failed to meet the standardof care required of a reasonable and prudent driver.The cases[18] It is generally no defence to a charge of careless driving that the driver hadfallen asleep.6 This recognises the principle that a person who chooses to drive a motorvehicle whilst at risk of falling asleep will thereby fall below the standard of care andattention expected of a prudent and reasonable motorist. In Kay v Butterworth,Humphries J observed:7If a driver allows himself to drive while he is asleep, he is at least guilty ofdriving without due care and attention because it is his business to keep awake.If drowsiness overtakes a driver while he is at the wheel, he should stop andwait until he shakes it off and is wide awake again. A person, however, who,through no fault of his own, becomes unconscious while driving, for example,by being struck by a stone, or by being taken ill, ought to not be liable atcriminal law.[19] As the passage set out above demonstrates, the law recognises that a personshould not be made criminally liable for the consequences that follow where he or shehas been rendered unconscious whilst driving a motor vehicle through no fault of his6 Hill v Baxter [1958] 1 QB 277 at 282.7 Kay v Butterworth (1945) 61 TLR 452.or her own. The examples given in that passage demonstrate the types of situation thatwill not lead to criminal consequences.[20] In New Zealand Police v Vialle, a soldier was driving a vehicle in night-timeendurance exercises on the orders of a superior officer and in circumstances where hehad had little sleep over preceding days.8 He was convicted in the District Court ofcareless driving causing injury after several occupants of his vehicle were injuredwhen he fell asleep at the wheel and the vehicle veered off the road and down a bank.The defendant said he was aware of the risk that he might become drowsy but believedthat he was fit to drive. The Judge at first instance found the defendant to be a truthfulwitness but held that a person who falls asleep whilst driving is careless in driving.[21] The High Court quashed the conviction on the basis that the defendant hadbeen ordered to drive by a military superior but subsequently gave the informant leaveto appeal to the Court of Appeal on questions of law. These related to the effect of thefact that the defendant had been driving whilst ordered to do so by a superior officer.The discussion by the Court of Appeal of that issue is obviously not relevant forpresent purposes. Relevantly, however, the Court of Appeal observed that a driver willnormally be careless if he does not stop when he finds he is becoming sleepy.9Whether there has been negligence or carelessness is a question of fact to bedetermined in each case. There had been no finding at first instance that the defendanthad formed an unreasonable belief that he was fit to drive. In those circumstances heshould not be convicted. The appeal was accordingly dismissed.[22] In Hoeta v Ministry of Transport the appellant had killed the occupant ofanother motor vehicle after losing consciousness whilst driving her vehicle.10 Theevidence revealed, however, that this was not an isolated occurrence and that she hadfainted on previous occasions in similar circumstances. Thomas J had no hesitationin concluding the appellant must have been aware of the possibility that she mightfaint whilst she was driving and therefore should not have been driving at the time ofthe incident giving rise to the charge.8 New Zealand Police v Vialle above n 4.9 New Zealand Police v Vialle, above n 4, at 524.10 Hoeta v Ministry of Transport HC Auckland AP29/91, 19 April 1991.[23] In Sweeney v Police, the appellant had fallen asleep at the wheel of hisvehicle.11 His vehicle then crossed the centreline and collided with an oncomingvehicle, badly injuring the driver. Prior to the collision the appellant had taken aprescribed medication, the container of which had a label that stated: "May causesleepiness: limit alcohol". It also transpired that the appellant had taken significantlymore than the prescribed dose before driving his vehicle.[24] The Judge who convicted the appellant at first instance took into account thefact that the appellant had exceeded the stated dose without seeking medical adviceabout the consequences of doing so, and that the label placed him on notice that themedication could lead to drowsiness. The appellant had also slept for a relatively shortperiod after taking the last dose of the medication. On appeal, Venning J observed:[23] There may have been more force in Mr Mansfield's submission if theappellant had complied with the prescription advice and had been taking themedication in accordance with the prescription for a week or so without anyadverse side effects during the day. In other words, if there had been anestablished pattern of taking the medication regularly at night, sleeping for saybetween seven and nine hours but being able to operate normally during theday without any adverse side effects, but that was not the case here. Thereasonableness of Mr Sweeney's asserted belief that when he woke in themorning he felt fine and thus was fit to drive is frankly more than answeredby the factors referred to by the Judge and identified above.[25] In Earl v Police, the appellant had been convicted of careless use of a motorvehicle causing death and injury.12 The prosecution alleged he had fallen asleep at thewheel of his vehicle on a straight stretch of road, thereby allowing his vehicle to crossthe centreline and collide with an oncoming vehicle. The driver of the oncomingvehicle was injured and the passenger, her husband, was killed in the collision. A shorttime earlier another motorist travelling in front of the appellant's vehicle had seen ittravelling in an erratic manner. On one occasion it had crossed the centreline whilstnegotiating a bend. The appellant himself had no memory of the collision or what hadcaused it.[26] The Judge at first instance found that the appellant must have fallen asleep, andthat his lack of memory of the events that led to the collision was consistent with this11 Sweeney v New Zealand Police HC Hamilton CRI 2006-419-143, 4 May 2007.12 Earl v New Zealand Police [2014] NZHC 911.occurring. One of the grounds of his appeal against conviction was that the Judgeought to have found it was reasonably possible that the oncoming car had crossed theroad first, and the collision occurred when the appellant endeavoured to take evasiveaction. Dunningham J observed that the Judge was required to assess the evidence intotality, and that the cumulative effect of the matters relied on by the prosecutionsupported the prosecution scenario.13[27] I take these cases to establish that the prudent and reasonable driver willrecognise when he or she is at risk of falling asleep. Any decision to continue drivingonce that risk is known will breach the duty of care imposed on all motorists.Situations may arise, however, where the driver falls asleep or is rendered otherwiseunconscious through some unanticipated event such as sudden illness or externalforce. Provided there is no forewarning of this possibility the driver will not becriminally liable for the consequences that follow.Decision[28] The starting point in this case is the fact that Mr Savieti's obstructive sleepapnoea did not cause him to fall asleep. Rather, it was one of the factors thatcontributed to the state of fatigue that he must have been experiencing when he electedto drive his vehicle home from work. It cannot be equated with an illness that suddenlycaused Mr Savieti to lose consciousness after he had begun driving.[29] I consider that several aspects of Mr Savieti's lifestyle and physiologicalmakeup made him particularly vulnerable to falling asleep on his way home from workon 15 November 2016. The first and most obvious flows from the undoubted fact thathe suffers from obstructive sleep apnoea. This detracts significantly from the qualityof his sleep each night, and means that he does not wake up refreshed each morning.It also means he becomes progressively more tired during the day.[30] The second is that, having risen at an early hour and driven to work, Mr Savietibegins his work day with two to three hours of heavy manual labour. This is obviouslylikely to add to his tiredness. The hours that he then spends undertaking administrative13 Earl v New Zealand Police, above n 12, at [41]-[42].or clerical work would not result in any reduction in fatigue, and indeed may serve toincrease his tiredness given that it extends into the early afternoon. Dr Veale said thatcircadian rhythms are at their lowest between 1pm and 3 pm.[31] These factors mean that Mr Savieti will inevitably be very tired by the end ofeach work day. Mr Savieti acknowledges this because he says he turns his music upand opens the window of the vehicle to refresh himself whilst driving home from work.He also usually sleeps for two to three hours when he arrives home. That is areasonably significant period of time to sleep in the middle of the day. It confirms hemust generally be very tired when he arrives home.[32] I therefore consider it likely that Mr Savieti was regularly driving home fromwork in a state of fatigue that left him at risk of falling asleep at the wheel. Mr Savietimay not have recognised that he faced this risk, but the warning signs must have beenthere. The fact that he was obliged on occasions to take active measures to combat histiredness whilst driving is testament to that fact.[33] It is possible, as the Judge found, that Mr Savieti's later than usual departurefrom work on the day of the collision also played a significant part in the events thatfollowed. By about 4 pm Mr Savieti would usually be at home asleep, and his bodymay have come to anticipate or depend on that period of rest. Whatever the immediatecause or causes of his sleepiness may have been, I consider the warning signs wouldhave been there for Mr Savieti to see if he had been prepared to recognise them. Itherefore do not consider that this is a case where a sudden illness or unforeseen eventhas rendered Mr Savieti unconscious at the wheel of his vehicle. Rather, he ignoredsigns that he was becoming sleepy and continued to drive when a prudent andreasonable motorist would have pulled off the road to rest.[34] It follows that the Judge was correct to find Mr Savieti guilty of drivingcarelessly and thereby causing injury. The appeal against conviction must thereforefail.B The appeal against sentence[35] Ms Pitch does not take issue with the orders requiring Mr Savieti to makepayments to the victim by way of reparation and for the emotional harm the offendinghas caused her. The only aspect of the sentence that Ms Pitch challenges is theimposition of the sentence of community work. She submits that this was unnecessarygiven the low level of Mr Savieti's culpability and the fact that Mr Savieti was notaware that he suffered from obstructive sleep apnoea prior to the date of the collision.Mr Savieti also attended a restorative justice conference with the victim of hisoffending and this ended with the parties being on amicable terms. In addition,M Pitch points out that Mr Savieti has now taken steps to address the underlying issuethat led to his offending, and that a punitive sentence of community work was notwarranted.[36] Mr Dow for the respondent points out that the collision was serious and leftthe driver of the other vehicle with significant injuries that will have long lastingconsequences. He contends the sentence therefore needed to contain a punitiveelement as well as a compensatory element.[37] On this point I accept the submissions for the respondent. A sentence havingan element of deterrence was required. The sentence was at the lower end of theavailable range having regard to the damage caused by Mr Savieti's offending.Furthermore, the Judge elected not to impose a fine in addition to the reparation andemotional harm payments that she required Mr Savieti to make. Given those factors Ido not consider the Judge erred in principle by imposing the sentence of communitywork.Result[38] The appeal against conviction and sentence is dismissed.Lang JSolicitors:Crown Solicitor, Auckland